Hines v. Argus International, Inc

Filing 30

ORDER granting without prejudice 9 Defendant ARGUS International, Inc.'s Motion to Dismiss Plaintiff's Complaint. On or before 6/13/2014, Plaintiff shall file any amended complaint in conformity with this Order. On or before 7/8/2014, Defendant shall file any responsive pleading to the amended complaint. Signed by Judge Timothy J. Corrigan on 5/19/2014. (BJB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CHRISTINE HINES, as Personal
Representative of the Estate of David
W. Hines, deceased,
Plaintiff,
v.

Case No. 3:13-cv-1065-J-32MCR

ARGUS INTERNATIONAL, INC.,
Defendant.
ORDER
This case arises out of a charter helicopter crash that occurred in the early
morning of December 26, 2011, near Green Cove Springs, Florida, and that took the
lives of all onboard, including passenger David W. Hines. In a five-count complaint
containing claims for negligence, negligent misrepresentation, and three varieties of
fraud, Plaintiff Christine Hines alleges that her husband, part of the organ transplant
team at Mayo Clinic in Jacksonville, Florida, would never have been in the helicopter
that day if Defendant ARGUS International, Inc., a charter air services rating
company, had told Mayo Clinic the truth about the poor safety record and precarious
financial condition of the helicopter charter service, SK Jets, Inc. (Compl., Doc. 1.)
ARGUS has moved to dismiss her complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Mot. to Dismiss, Doc. 9.) According to ARGUS, Hines has not
adequately pleaded, and cannot adequately plead, that anything ARGUS did or failed
to do proximately caused the crash. ARGUS also argues that Hines has not pleaded

her misrepresentation claims with sufficient particularity under Federal Rule of Civil
Procedure 9(b) because they contain no allegations regarding if, when, and how
ARGUS’s alleged misrepresentations reached and misled the decedent.
Hines responds that the Court must infer from the allegations in her complaint
that Mayo Clinic would not have chosen SK as its charter service had ARGUS told the
truth. (Resp., Doc. 14.) Moreover, Hines believes that, under Florida law, ARGUS
can be liable to the decedent’s estate for its misrepresentations because the decedent
was among those whom ARGUS should have expected to be imperiled by its
misrepresentations. Finally, Hines contends she has alleged enough detail regarding
the misrepresentations to satisfy Rule 9(b).
On April 29, 2014, the Court held a hearing on the motion to dismiss, the record
of which is incorporated herein.

(Minute Entry, Doc. 25.)

At the hearing, both

parties seemed to recognize the relative novelty of the claims presented in this case.
According to counsel for ARGUS, his client has never been faced with claims like these
before. Similarly, counsel for Hines has been unable to identify a case quite like this,
though he believes the case to have a basis in Florida law.
The Court’s own research has done little better in identifying authority on point.
There is some authority that, while presently distinguishable, could be read to allow
for the kinds of claims Hines pursues here. See, e.g., Hill v. Celebrity Cruises, Inc.,
No. 09-23815-CIV, 2011 WL 9379007 (S.D. Fla. 2011) (citing Restatement (Second) of
Torts § 311); also Abrisch v. United States, 359 F. Supp. 2d 1214 (M.D. Fla. 2004)
(citing Worthington v. United States, 21 F.3d 299 (11th Cir. 1994)). But rather than

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make a conclusive determination at this stage, the Court determines that the validity
of Hines’s claims would be best decided upon a full record. A full record will allow the
Court to more confidently make a determination whether to allow Hines to go forward
or to conclude that ARGUS was correct to characterize Hines’s theory of a liability as
unfounded and speculative. The Court thus declines to dismiss Hines’s complaint
with prejudice, but fully expects to face these issues again at the summary judgment
stage.
Before proceeding further, however, Hines does need to replead her complaint.
Counsel for Hines acknowledged at the hearing that some of her causes of action may
overlap.

In fact, the elements of “Fraud” and “Fraudulent Misrepresentation,”

Counts III and IV of the complaint, seem to overlap completely under Florida law.
Compare Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010) (fraudulent
misrepresentation); with Lance v. Wade, 457 So. 2d 1008, 1011 (Fla. 1984) (fraud).
“Fraud in the Inducement,” Count V, may be somewhat distinct from ordinary fraud,
but it is not evident how it fits with this wrongful death case. Similarly, it is not clear
from the complaint what negligent acts or omissions other than the alleged
misrepresentations and concealment would support the “Negligence” cause of action
in Count I as distinct from the “Negligent Misrepresentation” cause of action in Count
II. (Compare Doc. 1, ¶¶ 49-54 with ¶¶ 55-61.) Further, Hines variously alleges that
ARGUS made affirmative misrepresentations and fraudulently concealed information
(see, e.g., id., ¶¶ 26, 62, 68), but does not plead a distinct count for fraudulent
concealment, a separate cause of action that appears to require the added element

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that “the party omitting the information owes a duty of disclosure to the party
receiving the information,” Behrman v. Allstate Ins. Co., 388 F. Supp. 2d 1346, 1351
(S.D. Fla. 2005) (citing TransPetrol Ltd. v. Radulovic, 764 So. 2d 878, 880 (Fla. 4th
DCA 2000)).
Finally,

the

complaint

lacks

certain

details

regarding

the

alleged

misrepresentations and omissions, specifically who at ARGUS allegedly spoke with
who at Mayo Clinic. Hines has this information, since she provides it in her response.
(Doc. 14 at 15.) She should include it in her amended complaint, as well. See Am.
Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010). (“[P]ursuant to
Rule 9(b), a plaintiff must allege . . . the time, place, and person responsible for the
statement [and] the content and manner in which these statements misled the
Plaintiffs . . . .” (quotations omitted)).
For these reasons, the Court determines that the motion to dismiss should be
granted without prejudice.

In requiring repleader, the Court is not dictating to

plaintiff which causes of action she should pursue. The Court is merely directing
plaintiff to revisit the complaint and ensure that her claims meet the elements
required under Florida law. Accordingly, it is hereby
ORDERED:
1.

Defendant ARGUS International, Inc.’s Motion to Dismiss Plaintiff’s

Complaint (Doc. 9) is GRANTED without prejudice.
2.

On or before June 13, 2014, Hines shall file any amended complaint in

conformity with this Order.

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3.

On or before July 8, 2014, Defendant shall file any responsive pleading

to the amended complaint.
4.

Contemporaneous with this Order, the Court will enter a separate Case

Management and Scheduling Order.
DONE AND ORDERED at Jacksonville, Florida this 19th day of May, 2014.

bjb
Copies to:
Counsel of record

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